Legal Papers of John Adams, volume 2
On 28 November 1772 Adams wrote in his diary, “The Conversation of the Town and Country has been about the strange Occurrence of last Week, a Piracy said to have been committed on a Vessell bound to Cape Cod, 3 Men killed, a Boy missing, and only one Man escaped to tell the News—a misterious, inexplicable Affair!”1 The later trial of Ansell Nickerson, the “one Man escaped,” for the alleged murder, with Adams and Josiah Quincy Jr. as defense counsel, was only to deepen the mystery.
336Nickerson had sailed on 14 November from Boston for Chatham as passenger aboard a small fishing schooner under the command of his cousin Thomas Nickerson. In the crew were Sparrow Nickerson, brother to Thomas; their brother-in-law, Elisha Newcomb; and William Kent, a boy of thirteen. About ten o'clock in the morning of Sunday the 15th, Captain Joseph Doane Jr., of Chatham, having sailed from that harbor, sighted the schooner between Chatham and Nantucket, flying a signal of distress. On boarding her, Doane found only Nickerson, “who appeared to be in a great Fright,” but who was able to report that about two o'clock that morning those aboard the fishing vessel had seen “a Topsail Schooner, who brought them to, and sent a Boat on board, and after questioning them returned again—Soon after four Boats with armed Men came back from the Schooner.”2
Nickerson, “fearing he should be Impressed, got over the Stern and held with his hands by the Taffarill,3 with his Feet on the Moulding, under the Cabin Windows. That whilst he was thus hanging over the Stern he judges by what he heard that the Master, with his own Brother, and a Brother-in-Law, named Newcomb, were murdered and thrown overboard, and a Boy named Kent, carried away alive, as they said, in order to make Punch for them—That he heard a Talk of burning the Vessel, but it was finally agreed to leave her to drive out to Sea with her Sails standing. That after perpetrating this inhuman Deed they plundered the Vessel of a considerable Quantity of Cash,4 knocked out the head of a Barrel of Rum, and after wasting the greatest Part of it, went off with the money and other Booty; tho' they left behind a Quarter of fresh Beef & a number of small Stores.—That when they left the Vessel, he came upon Deck, he found none of the Crew, but saw the Marks of blood, and supposes they were murdered.”5
Doane apparently brought the schooner into Chatham, and then sent his account of the episode to Edward Bacon, a justice of the peace in Barnstable. Bacon forwarded Doane's report to Governor Thomas Hutchinson in Boston, and went himself to Chatham on the 16th, where, with another justice, he formally examined Nickerson, who had returned from some unexplained wanderings (Document II). Bacon then dismissed him with the consent of the father of the two deceased Nickersons. In the meanwhile, the Lively man-of-war was sent out from Boston to search for the supposed pirate.6 On the 19th Bacon's examination reached Hutchinson, who, finding “Every part of the passenger's [Nickerson's] account . . . incredible,”7 consulted with “such of the Commissioners for the trial of Piracies, &c. as were in Town,”8 and issued a warrant for Nickerson's apprehension. This order reached Barnstable by express at midnight on the 20th. There Nickerson was in jail, the local justices having had second thoughts about his story. He had been taken into custody again, re-examined, and committed, “in order to receive Directions from the Governor.” Finally, on the 22d, Nickerson was brought under guard to the Province House at Boston, where Hutchinson, Admiral John Montagu, Lieutenant Governor Andrew Oliver, and Secretary Thomas Flucker, all Commissioners for the Trial of Piracy, examined him from seven until eleven in the evening, and ordered him held for trial.9
The Lively returned after a fruitless search,10 and a Special Court of Admiralty for the Trial of Piracies was thereupon convened. There were some, according to Hutchinson's later account, who “were ready enough to charge the piracy and murder to a king's schooner, then expected from Rhode Island,” and the Sons of Liberty “professed to make no doubt of its being a man of war schooner; and the governor was charged in the publick prints with too critical and severe an examination of the prisoner, whose innocence, it was said, would appear.” The old cry that an Admiralty trial deprived the accused of his right to a jury was also raised,11 but the Commissioners were not deterred. On 16 December, at a sitting of the Special Court, “an Information was filed and exhibited by Ezekiel Price appointed Register of the said Court, against Ansell Nickerson, a Prisoner in his Majesty's Goal, for the murder of Thomas Nickerson, jun., on the High 338Seas on the 14th of November last.” Nickerson pleaded Not Guilty, and, upon motion for time to prepare his defense, he was remanded to jail, and the court adjourned until 2 June 1773.12
When the day set for trial arrived, the court did not convene, according to one account, because “some matters of greater importance,” presumably the investigation of the burning of the Gaspee, “employ at present the time of several members.”13 Nickerson was again examined, however, on the basis of new evidence which was said to militate against him.14 Finally, in the middle of July trial was set for the 28th of that month.15
According to Adams' later recollection, “I was of counsel for Nickerson, but was not engaged till the trial came on, when he requested the court to appoint me.” This arrangement seems to have been made sometime after 28 July 1773,16 when the proceedings actually began. A contemporary account relates that witnesses on both sides were examined from that day until the evening of Friday the 30th. The court then adjourned until Tuesday, 3 August, when Samuel Fitch, Advocate General, after examining several additional witnesses for the Crown, made his opening argument (Document II).17 Fitch first argued that Nickerson was properly before the Special Court, though charged with murder, since that offense, as well as taking the vessel, constituted piracy. Then, after citing authorities on the nature of circumstantial and presumptive proof, he launched into an extensive review of the evidence. The burden of his argument was that the inherent improbabilities of Nickerson's account were a strong indication of its untruth; that the facts would as well support the Crown's version of the affair; and that the accused had had ample time to bring ashore unobserved the money, theft of which was supposed to have been the motive of his acts.
On the afternoon of 3 August, Adams and Josiah Quincy Jr., began their 339argument, which was to last through the next day.18 Quincy apparently opened, probably with a review of the evidence. All that has survived, however, are Adams' fragmentary notes of authorities cited by Quincy, which indicate that the latter concentrated heavily on the quantum of proof needed for conviction where the evidence was wholly circumstantial except for the accused's own statements (Document II). Adams first briefly discussed the information, then made an argument drawn from his experience in Rex v. Corbet, No. 56, that since the court sat in Admiralty it should apply the civil-law doctrine that the crime of manslaughter was not punishable by death. He then launched his main attack on Nickerson's several examinations before various officials, treating them as confessions, in which the favorable as well as the unfavorable must be admitted, and attacking their admissibility generally. Next he proceeded to set out authorities, familiar to him both from Corbet and Sewall v. Hancock,No. 46, requiring that proof be certain and consistent in criminal cases. He closed with observations upon Fitch's treatment of the evidence (Documents I, III).
On Thursday afternoon, 5 August, Fitch “closed the cause,” and the Court, after telling the prisoner that if he had more to say in his defense he could say it the next day, adjourned until the morning of the 6th. When the Court reconvened, Nickerson “express'd his Wishes that certain Witnesses (who he apprehended would testify in his Favor) had been present; and concluded with saying that, 'if I lose my Life, I am innocent of the Crime laid to my Charge.'” The court room was then cleared, and the Court undertook to consider the evidence. After two and a half hours the prisoner was called in, and “the President [Hutchinson], after a solemn Pause, told the Prisoner, 'The Court have considered of your Offence, and they do not think that the Evidence offered to them is sufficient to support the Charge alledged against you in the Information—and therefore adjudge you
not guilty.'” On motion by Nickerson's counsel, the Advocate General not objecting, he was discharged. “The Prisoner being informed of it, respectfully bowed to the Court, and said, 'I thank the honorable Court —and GOD—for my deliverance!'” As a contemporary newspaper put it, “Thus ended a Trial, for the most surprizing Event, which has happened in this, and perhaps any other Age of the World.”19
Later accounts by Hutchinson and Adams differ as to the reasons for the acquittal. The newspapers had reported that, the court being divided four and four on the question, “An Acquittal of the Prisoner followed of Course.”20 Hutchinson, who made no bones about his certainty that Nick-340erson was guilty, confirmed the report of the court's division, but said that the crucial issue was a procedural one. The statute, 11 & 12 Will. 3, c. 7 (1700), under which the court was constituted, gave jurisdiction in piracies and other “felonies,” excluding murder, according to the opinion of the Crown law officers in England. The information charged Nickerson with piracy only, but alleged the murder to support it. Four of the Court held that to convict of piracy would be to convict of murder, and thus to exceed their jurisdiction.21 Adams' notes show that Fitch argued this point (Document II), and suggest that Adams briefly replied (Document III). Adams did not, however, in his subsequent recollections see this as the critical question. He admitted that he did not know the basis of the acquittal, but guessed that the court was moved by lack of direct evidence, and consequent doubt of Nickerson's guilt, a doubt which he shared himself.22 Either version of the acquittal is supported by the language of the court's decision.
Nickerson himself, who, according to Adams, thereafter “lived many years, and behaved well,”23 did not seem to be overly grateful to his counsel. His comments before and after his discharge at the trial, already quoted, suggest a certain lack of appreciation for their efforts, and a tendency to credit his release to other agencies. Adams later reported that “He had nothing to give me, but his promissory Note, for a very moderate Fee. But I have heard nothing from him, nor received any Thing for his note, which has been lost with many other Notes and Accounts to a large Amount, in the distraction of the times and my Absence from my Business.”24 This note, dated 30 July 1773, for £6 13s. 4d. has been found, too late to enforce payment, and still remains, unreceipted, in the files of the Adams Papers.25
Boston Evening-Post, 23 Nov. 1772, p. 2, col. 3. See also, Massachusetts Spy, 19 Nov. 1772, p. 3, col. 3; 3 Hutchinson, Massachusetts Bay, ed. Mayo, 300. The latter adds the details, presumably from Hutchinson's personal knowledge of the case, that the Nickerson schooner was first boarded “by a large boat, rowed with twelve oars, which came from an armed schooner lying to at a distance.” Doane also figures in Doane v. Gage, No. 43, and appears briefly in the epic of the Lusanna, No. 58. Fitch's account of the evidence (Doc. II) suggests that Nickerson testified that his purpose in going on the voyage was “to get his Cloaths.”
That is, the taffrail, the upper part of a ship's stern, sometimes a railing there. The spelling in the text is a corruption of the 18th-century usage, “tafferel” which is derived from the Dutch taferell, a panel.
OED
. JA, in a later account, referred to this as “some thing, the technical term for which, in naval architecture, I have forgotten.” JA to David Sewall, 29 Jan. 1811, 9 JA, Works
627, 628.
Hutchinson described this as “the money which the crew had received at Boston, for the earnings of their vessel the year preceding,” assigning robbery as the motive. 3 Hutchinson, Massachusetts Bay, ed. Mayo, 301–302. According to one contemporary account, the vessel was returning home after discharging its catch from a fishing voyage at Boston. Massachusetts Spy, 19 Nov. 1772, p. 3, col. 3. Compare JA's comment that “A sum of money of no great amount had been shipped on board by one of the other men, which was not found.” JA to David Sewall, note 3 above.
Boston Evening-Post, 23 Nov. 1772, p. 2, col. 3.
Boston Evening-Post, 23 Nov. 1772, p. 2, col. 3. See also, 3 Hutchinson, Massachusetts Bay, ed. Mayo, 300–301; Rowe, Letters and Diary
236.
Boston Evening-Post, 23 Nov. 1772, p. 2, col. 3.
Boston Evening-Post, 23 Nov. 1772, p. 2, col. 3; Rowe, Letters and Diary
236.
In the Boston Evening-Post, 23 Nov. 1772, p. 2, col. 3, the Lively was reported as having returned “yesterday.” Rowe, Letters and Diary
236, reports her return “from a Cruize into Nantasket Roads,” with “No further account of any Pirate,” on 28 November. The discrepancy may be accounted for by the possibility that the vessel made more than one “Cruize.”
3 Hutchinson, Massachusetts Bay, ed. Mayo, 300, 302. Hutchinson was attacked in the Massachusetts Spy, 17 Dec. 1772, p. 2, cols. 1–2, for his aversion to “fair trials by jury.” Nickerson's arraignment (note 12 below) was reported in the same issue, at p. 3, col. 2.
Boston Evening-Post, 21 Dec. 1772, p. 2, col. 3. According to Rowe, the court at this session consisted of “The Governour, Lieut Govr, The Secretary of the Province, The Admirall The Judge of Admiralty, Mr. Fisher the Collector of Salem, Mr. Waldo, The Collector of Falmouth Casco Bay.” Rowe, Letters and Diary
237. Hutchinson's version is that “the counsel for the prisoner moving for further time, and urging that intelligence might probably be obtained of a pirate schooner having been in the bay, and it appearing that a large armed schooner sailed from Boston, bound to the coast of Guinea, at the same time with the fishing vessel, the court thought proper to adjourn the trial for six months.” 3 Hutchinson, Massachusetts Bay, ed. Mayo, 301.
Massachusetts Spy, 3 June 1773, p. 2, col. 4. As to the Gaspee, see p. 104, note 24, above.
Massachusetts Gazette, 17 June 1773, p. 3, col. 2; Massachusetts Spy, 17 June 1773, p. 3, col. 2. It was later reported that Nickerson had been examined “on the report of money being found, suspected to be hidden by him.” Boston Gazette, 5 July 1773, p. 3, col. 1.
Massachusetts Gazette, 15 July 1773, p. 3, col. 1.
JA to David Sewall, 29 Jan. 1811, 9 JA, Works
627, 628; compare 3 JA, Diary and Autobiography
297: “He requested my Assistance and it was given.” The note which Nickerson gave Adams for his fees was dated 30 July 1773. See text at note 25 below.
Boston Gazette, 9 Aug. 1773, p. 1, col. 2.
Boston Gazette, 9 Aug. 1773, p. I, col. 2.
The foregoing paragraph is drawn from the account in Boston Gazette, 9 Aug. 1773, p. 1, cols. 2–3. A broadside published after the trial related certain further “circumstances” purportedly establishing Nickerson's innocence. Worthington C. Ford, comp., Broadsides, Ballads &c. Printed in Massachusetts, 1639–1800, 75 MHS, Colls.
, No. 1678 (1922). The enduring appeal of Nickerson's adventures is attested by Albert Smelco's play, “The Ansell Nickerson Story,” performed at Chatham, Mass., in Aug. 1962. Boston Globe, 3 Aug. 1962, p. 8.
Boston Gazette, 9 Aug. 1773, p. 1, col. 3.
3 Hutchinson, Massachusetts Bay, ed. Mayo, 301. For the opinion of the Advocate, Attorney, and Solicitor General, 5 Nov. 1761, upon which Hutchinson apparently relied, see Chalmers, Opinions
525–527.
JA to David Sewall, 29 Jan. 1811, 9 JA, Works
627, 628; see also 3 JA, Diary and Autobiography
297: “I know not to this day what Judgement to form of his Guilt or Innocence.”
JA to David Sewall, 29 Jan. 1811, 9 JA, Works
627, 628.
Adams Papers, Microfilms, Reel No. 344.
Woods. Inst. 675, middle. “The Confession of the Defendant to private Persons, or to a Magistrate, out of Court, is allowed to be given in Evidence against the Party confessing; but this Confession cannot 341be made use of against any other. But where a Man's Confession is made use of against him, it ought to be taken alltogether, and with that part which makes for him as well as with that which makes against him.”2
Vin. Tit. Evidence, page 95. A. b. 23. “3. In an Information for publishing a Libel, the Defendants own Confession was given in Evidence against him, but per Holt C.J. if there was no other Evidence against him but his own Confession, the whole must be taken, and not so much of it as would serve to convict him. 5. Mod. 167. King v. Pain. Hill. 7. W. 3.” Note. “So if to prove a Debt it be sworn that Defendant confessed it, but withal said at the same Time, that he had paid it, this Confession shall be valid as to the Payment, as well as to his having owed it. Per Hale Ch. J. and so is the common Practice. Try. per Pais 209.”3
Vin. Tit. Evid. p. 96. Top. “4. Confession is the Worst Sort of Evidence.” i. e. &c.4 “6. The Examination of the Prisoner himself (if not on oath) may be read as Evidence against him; but the Examination of others (though not on oath) ought not to be read if they can be produced, viva voce.”5
2. Bac. Abr. 313 “Of the Parties Confession. “But wherever a Mans Confession is made use of against him, it must be taken alltogether and not by Parcells.” 2. Hawk. 4296
3422. Try. Pr. Pais 427. Same as Viner.7
5. Mod. Rex vs. Paine. 165. “If Confession shall be taken as Evidence to convict him it is but justice and Reason, and so allowed in the Civil Law, that his whole Confession shall be Evidence as well for as against him.” Page 167, middle, “if there was no other Evidence against him but his own Confession, the whole must be taken together, and not so much of it as would serve to convict him.”8
2. Hawk. P.C. 429. “§5. It seems an established Rule, that wherever a Mans Confession is made use of against him, it must all be taken together and not by Parcells.”9
2. Hale. H.P.C. 290. “Never convict of Murder or Manslaughter unless the Fact be proved to be done or at least the Body found dead.”10
4 Black. 352. Fourthly.11
Dig. Lib. 29. Tit. 5. §24. “Nisi constet aliquem esse occisum, non habui de familia quaestionem.”12
2 Domat. 667.13
343Woods Inst. 310 “In Criminal Cases, the Proofs ought to be as clear as the sun at Noon day.”
14
Cod. Lib. 4. Tit 19. §25. De Judiciis criminalibus. “Sciant cuncti accusatores eam se rem deferre in publicam notionem debere, quaemunita sit idoneis Testibus, vel instructa apertissimis documentis, vel indiciis, ad probationem indubitatis, et luce clarioribus expedita.” Vid. notes also.15
Maranta. page 49. pars 4. dist. 1. 77.16
Gail. Page 503. “debet venis et expressus intervenire Dolus,” &c. “Lata culpa, non aequiparatur dolo.” &c. “Dolus non praesumitur,” &c. “Quapropter dolum allegans, eum probare debet.”17
Page 509.18
Examen Juris canonici 335. 343. Quid est confessio et quid operatior extra judicialis Confession in criminalibus.19
Maranta. Sp. Aur. 313. 114. especially.20 See Calvins Lexicon Tit. confiteri. Capitulum.21
2. Cor. Jur. Can. 118 page of the Inst. De probationibus.22
344Number of Witnesses.
New Institute of the civil Law page 316. 2.23 Dig. Lib. 22. Tit. 5 §12.24
Cod. Lib. 4. Tit. 20. §9. §1. and Notes.25
St. Tryals. V. 8. page 213. Tryal of Captn. John Quelch and others, at Boston.26
St. Tryals. V. 6. 156. Tryal of Major Stede Bonnett at So. Carolina, and 33 others.27
Statutes. 28. H. 8, c. 15. “For Pirates.” 11. & 12. W. 3, c. 7. for the more effectual Supression of Piracy. 4 G, c. 11. For the further preventing of Robbery &c. and for declaring the Law upon some Points relating to Pirates. §7.28
In JA's hand. Adams Papers, Microfilms, Reel No. 185. Docketed by JA: “Ansell Nickerson's Case. Evidence, Confession, Judication,” the three issues with which these notes deal. Intervals of space indicate space breaks in the MS. JA's outline of his own argument is appended to these notes in the MS, but it is here printed separately (Doc. III), so that the arguments can be presented in the order in which they were presumably given. See note
The passage appears in Wood, Institute of the Laws of England
671 (London, 9th edn., 1763). JA seems to have cited the wrong page inadvertently. This is the only edition in which there are more than 663 pages, 1 Sweet and Maxwell, Legal Bibliography
38. Quotation marks have been supplied.
12 Viner, Abridgment
95, tit. Evidence, plea A. b. 23, no. 3. Quotation marks supplied. For King v. Pain, see note Tryals per Pais 209 (London, 3d edn., 1700). The same passage appears at p. 363 in Volume 2 of the 1766 edition of the latter work, cited below by JA, note
12 Viner, Abridgment
96, tit. Evidence, plea A. b. 23, no. 4. Quotation marks supplied. The passage reads in full, “Confession is the worst sort of Evidence that is, if there be no Proof of a Transaction or Dealing, or at least a Probability of Dealing, between them as in the Principal Case there was, the one being a Sailor, the other a Master of a Ship. Per Holt. 7 Mod. 42. Mich, 1 Ann. B.R. Anon.”
12 Viner, Abridgment
96, tit. Evidence, plea A. b. 23, no. 6. Quotation marks supplied. JA has omitted the citation: “St. Tr. 1 Vol. 169. 780.—2 Vol. 575.”
12 Bacon, Abridgment
313, tit. Evidence, L. Quotation marks supplied. JA has omitted the preceding paragraph, which states that the defendant's confession, whether taken according to law by a justice of the peace or magistrate, “or spoken in private Discourse,” may be used against him. Both this passage and the sentence quoted in the text appear in substantially similar form in 2 Hawkins, Pleas of the Crown
429, which is cited in the margin in Bacon. See notes
2 Duncombe, Trials per Pais
427 (8th edn., 1766). The passage contains several more or less accurate quotations from 12 Viner, Abridgment
95–96, including those cited in notes
Rex v. Paine, 5 Mod. 163, 165, 167, 87 Eng. Rep. 584, 585, 586 (K.B. 1695). Quotation marks supplied. See note
2 Hawkins, Pleas of the Crown
429, §5. Quotation marks supplied. The passage is cited by Bacon, note
2 Hale, Pleas of the Crown
290. Quotation marks supplied.
That is, 4 Blackstone, Commentaries
*352: “Fourthly, all presumptive evidence of felony should be admitted cautiously: for the law holds, that it is better that ten guilty persons escape, than that one innocent suffer.” Blackstone then recites the passage quoted from Hale, note
That is, Justinian, Digest, bk. 29, tit. 5, law I, §24, cited by Hale, note Civil Law
320: “Unless it is established that a man has been killed, his slaves ought not to be tortured.”
2 Domat, Civil Law
667, a passage stating the general rule that a confession is to be taken as proof of the fact confessed unless the contrary be established affirmatively. “And this Rule has only one Exception in Accusations of Capital Crimes, where it is not enough that the Party who is accused confesses a Crime which is not proved; but other Proofs are necessary for putting him to Death besides his own Confession, which might be an Effect of Melancholy or Despair, or proceed from some other Cause than the Force of Truth.”
Wood, New Institute of the Civil Law
310. Quotation marks supplied. Compare No. 46, note
Justinian, Codex, bk. 4, tit. 19, §25. Quotation marks supplied. See No. 46, notes
Maranta, Speculum Aureum, pars IV, Distinctio I, §77. Quoted, No. 56, note
Gail, Practicarum Observationum 503, quoted in No. 56, note
Gail, Practicarum Observationum 509. See No. 56, note
Presumably a reference to Gregor Kolb, Examen Juris Canonici, juxta V. libros decretalium (Vienna, 1728), a work which JA owned. See
Catalogue of JA's Library
136.
Maranta, Speculum Aureum 313. “114” is presumably an inadvertence for p. 314. See text preceding note
Johannes Calvinus, Lexicon Juridicum Juris Caesarei Simul, et Canonici, tits., Confiteri, Capitulum (Geneva, 1622). It has not been possible to determine exactly the passages under these heads to which JA referred. The title “Capitulum” seems to contain nothing relevant. Under “Confiteri” there are several general statements concerning confessions which JA may have intended. The citation is omitted in the notes from which he argued (Doc. III).
Apparently a reference to Institutiones Juris Canonici 118 (Basel, ed. J. P. Lancelottus, 1695), bound with separate paging as part of Corpus Juris Canonici (Basel, ed. J. P. Lancelottus, 1696). At the cited page appears bk. 3, tit. 14, “De Probationibus,” a title beginning with several sections concerning proof by confession of the parties.
Wood, New Institute of the Civil Law
316, §2, set out in No. 46, notes
Justinian, Digest, bk. 22, tit. 5, §12, set out in No. 46, at note
Justinian, Codex, bk. 4, tit. 20, §9, §1, set out in No. 46, at note
Reg. v. Quelch et als., 8 State Trials 205, 213 (Boston, Ct. of Adm., 1704). Quelch and his crew had taken over a privateer when the master died, and had preyed on friendly shipping in the South Atlantic. The cited page contains a series of objections to the evidence by Quelch's counsel. JA's use of the passage in his argument (Doc. III) indicates that he here referred to an argument that the civil-law rules for accrediting witnesses should apply. This contention, like all the others made for Quelch, was rejected by the court. Quelch and several of his accomplices were ultimately condemned and executed on 30 June 1704.
Rex v. Bonnet, 6 State Trials 156 (S.C. Vice Adm., 1718). See No. 56, at note
See 28 Hen. 8, c. 15 (1536), set out in No. 56, at notes id., at notes id., at notes
See Foster, Crown Cases
288–289, indicating that there is no crime of manslaughter in Admiralty, set out in No. 56, at notes
See Barrington, Observations upon the Statutes
54, stating that there is no crime of manslaughter under the civil law, set out in No. 56, at note
Fitch. Not charged with Murder. But as the Killing constitutes Pyracy.
11. & 12. W, c. 7, §9.2
Petit Treason at common Law. 25. Ed. 3. defined Treason.3 Confining the Master, and taking Vessel into Possession and robbing him is Pyracy.
Evidence presumptive. No Witnesses who saw the Transaction.
1. Domat. 413. T. 6. That a Proof which convinces the Mind.4 414. Signs, Tokens, Conjectures, and Presumptions.5
2. Sorts of Presumptions, 1. Proofs. 2. Only conjectures without Certainty. A necessary Connection.6
346430. §4. Presumptions of 2 Kinds. Conjectures leave doubt.7
2. Domat. 666.8
Wood civil Law. page 302. Proof—plena, 2 Witnesses. 2 half proofs make one whole one.9
305. 6. Confession, not conclusive alone. Ought to admit the whole. —See this by all Means.—Defence must be proved.10
Appeal to the human Mind that it is impossible to divide his Confession.11
347The 4 Persons were on board and said12 with Prisoner. Neg
All 4 kill'd.
Prisoner's own Account. Blood spilt, where they came up.
All 4 Missing 9 Mo.13 No Account of them.
What supposition can be made, consistent with common sense.
Prisoner found alone on board. All staind with blood, the decks reeking with blood.
In Possession of Vessell, and evry Thing, disposing as he thought proper.—Mem. signal of distress.14
Woman delivered alone.15
Goods taken with the Maner.16
His Account improbable, incredible. Therefore makes vs. him not for him. Improba
His Design in going only to get his Cloaths. Cost him much to come back by Land.
No Wind he says.
No Ax. Crowl17 says there was. They were to
Does not know the Boys Name.
None of the other Vessells saw this Schooner.
None heard the Gun but him.
Incredibility that there should have been a Pirate Vessell. Boats could not board.
He said the Box was gone, tho he said he had not been down the Hold.
Rum on the Boards therefore not carried off.
Fresh Meat, Butter, Cyder, Roots, &c. not taken.
The Pirates must have trod in the blood, and left the Marks in Cabin, hold &c.
348Where was the Prisoner for fear of Impress. Hanging on the Stern.
Is it possible he should have hung there a Minute.
Why did not they discover him, when on the deck and when they came under the Stern.
The Paint clean, not bruised nor broke.
Manner of getting in incredible, impossible.
Account of Coll. Doane different.18
If the Prisoner guilty would not every appearance have been as they were.
Liquor, Cyder and Rum in the Pail, and the
Conduct after he came ashore—wandering God knows where. No Account can be given of him. An opportunity to bring it ashore, the Money.
Confident he should be discharged.
Went a little Way, felt poorly, when he came back. The Witnesses say he could not go on board the Vessell then, but he might go where the Money was hid.
All Night absent going to his Grandfathers. He pretended he was lost.
Went to the Hay Yard to the End of the Stack, to get hay for his Horse.
7 Months after, an handkerchief found.
Otis Lorings Account—dont tell me, where
J. Quincy. Altogether presumptive.
Wood civ. Law 276.19
Hawk. P.C.20
Viner. Ev. p. 95.21
Dig. 42. Tit. 2.22
349Cod. 7. Tit. 59.23
1. Domat. 430. Thus in a criminal Action, &c.24
2. Domat. 668. 9. Consequences from certain facts, known and proved. The natural and necessary Connection between the facts proved, and those inferred.25
670.26
2. Domat. 618.27
1. Ld. Bacon. 251.28
2. Hawk. Hale P.C. 289.29
Ayliff 447. 8.30
Wood.31
In JA's hand. Adams Papers, Microfilms, Reel No. 185. The notes have been dated from a contemporary newspaper account. See text at notes 17, 18, above.
11 & 12 Will. 3, c. 7, §9 (1700): “And be it further enacted, That if any commander or master of any ship, or any seaman or mariner, shall, in any place where the admiral hath jurisdiction, betray his trust, and turn pirate, enemy, or rebel, and piratically and feloniously run away with his or their ship or ships, or any barge, boat, ordnance, ammunition, goods, or merchandizes, or yield them up voluntarily to any pirate, or shall bring any seducing messages from any pirate, enemy, or rebel, or consult, combine, or confederate with, or attempt or endeavour to corrupt any commander, master, officer, or mariner, to yield up or run away with any ship, goods, or merchandizes, or turn pirate, or go over to pirates, or if any person shall lay violent hands on his commander, whereby to hinder him from fighting in defense of his ship and goods committed to his trust, or that shall confine his master, or make, or endeavour to make a revolt in the ship, shall be adjudged, deemed, and taken to be a pirate, felon, and robber, and being convicted thereof, according to the directions of this act, shall have and suffer pains of death, loss of lands, goods, and chattels, as pirates, felons, and robbers upon the seas ought to have and suffer.”
25 Edw. 3, stat. 5, c. 2 (1350), defined petit treason as “When a servant slayeth his master, or a wife her husband, or when a man secular or religious slayeth his prelate, to whom he oweth faith and obedience.” Fitch may here have been quoting or paraphrasing 1 Hawkins, Pleas of the Crown
98, c. 37, Of Piracy, §2: “It is said that before 25 Ed. 3. this Offense [Piracy] was punished at Common Law as Petit Treason, if committed by a Subject, and as Felony, if committed by a Foreigner: However it seems agreed, that after that Statute by which all Treason is confined to the Particulars therein set down, it was cognizable only by the Civil Law.” Compare 4 Blackstone, Commentaries
*71.
1 Domat, Civil Law
413, bk. 3, tit. 6, Of Proofs, and Presumptions, and of an Oath: “We call that a Proof which convinces the Mind of a Truth.”
1 Domat, “But if it [the identity of the murderer of one killed alone on the highway at night] is discovered, it will be only by Proofs that may be drawn from circumstances which shall happen to be linked together with this Crime, and which will depend on Events that have happened by accident, such as the casual rencounter of some Witnesses, and such signs and tokens as there may happen to be, conjectures, and presumptions.”Civil Law
414:
1 Domat, “It may be gathered from these Remarks, that there are two sorts of Presumptions: Some of which are drawn by a necessary consequence from a Principle that is certain; and when these sorts of Presumptions are so strong, that one may gather from them the certainty of the Fact that is to be proved, without leaving any room for doubt, we give them the name of Proofs, because they have the same effect, and do establish the truth of the Fact which was in dispute. The other Presumptions are all those which form only Conjectures, without certainty; whether it be that they are drawn only from an uncertain Foundation, or that the consequence which is drawn from a certain Truth is not very sure. “It is because of the difference between these two sorts of Presumptions, that the Laws have appointed some of them to have the force of Proofs, and have not left the Judges at liberty to consider them only as bare Conjectures, because in effect these sorts of Presumptions are such, that one sees in them a necessary connexion between the truth of the Fact that is to be proved, and the certainty of the Facts from whence it follows.”Civil Law
415:
1 Domat, Civil Law
430, bk. 3, tit. 6, Of Presumptions, §4: “Presumptions are of two kinds, some of them are so strong, that they amount to a certainty, and are held as Proofs, even in Criminal Matters. And others are only conjectures which leave some doubt.”
2 Domat, Civil Law
666, presumably a reference to a passage on the cited page describing the four ways of proving facts in court: “The Confession of the Party, the Testimony of Persons who know the Fact, the Evidence which arises from Deeds and Writings, and the Knowledge of certain Facts, which are linked in such a Manner with that whereof we search the Truth, that one may gather the said Truth from the Connection there is between the Fact in question and those of which the Truth is proved.” Immediately following in the text is the passage cited by JA, note
Wood, New Institute of the Civil Law
302 (London, 4th edn., 1730): “Proof is either (plena) a full proof, as by two Witnesses or a publick Instrument; or (semiplena) an half proof, as one Witness or a private Writing; so that two half proofs being joined together (though of a different nature) make one full proof.” Note that the edition cited here and in note
Wood, “But all Confessions are not to be esteemed a discovery of the Truth, if there are no other corroborating Circumstances. For sometimes Fear or a weariness of Life, or some other Reason hath induced Men to make Confessions of those Things which they were never guilty of. . . . But when the Confession is regular, and admitted by the other Party, he ought to admit the whole as it is qualified, and when it is extended to other matters which are done at the same time; unless there is a presumption against that part. As when one confesses that he kill'd New Institute of the Civil Law
305 (London, 4th edn., 1730):
The phrase between dashes in the text is presumably JA's insertion.Titius in his own defense; the killing shall stand by it self as confessed, and the qualification must be proved, because the Law presumes design, and throws the proof upon the Criminal.”
This is apparently a reference to the language of Wood, “But if the Sentences are distinct, where there is no presumption, the qualification afterwards comes too late, and infers that the Acts are done at different Times.” Then follows an example in which “The Libel charges that you receive 100 New Institute of the Civil Law
305–306, which follows the passage quoted in note
JA may have noted the argument for his own later use, since the statement would seem to cut against the Crown.l. of me. You answer, That you did receive 100 l. of me which I ow'd to you, and no other Sum; this is but one Sentence, and cannot be divided; for with one Breath I do as it were absolutely deny the Charge. But where the Sentences are divided, there the Confession shall be divided, and part accepted and part rejected. As if you had answer'd, That you did borrow the 100 l. but that you have since repaid it: Or that I have promised not to demand it 'till seven years were past. The latter part of this answer must be proved, else you will be condemned.”
Thus in MS, but quite possibly an inadvertence for “sailed.”
That is, nine months between the date of the incident in Nov. 1772 and the time of the hearing in Aug. 1773.
Probably JA's reminder to himself that Nickerson's signal of distress was not consistent with a criminal intent.
Probably a reference to an example given in 1 Domat, Civil Law
415, following the passage quoted, note
That is, “Manor” ? The reading and allusion are unclear. This may be a reference to a presumption as to the title to chattels remaining on the land at the time of conveyance.
Probably a witness, but not identified.
Probably a reference to Capt. Joseph Doane, who found the schooner (note 2 above), although the title, “Coll.” suggests Col. Elisha Doane, one of JA's wealthy clients. See Nos. 52, 58.
Wood, New Institute of the Civil Law
276 (London, 4th edn., 1730): “Homicide with Deliberation is when one kills another upon a premeditated design, and in cold Blood. If the design cannot be proved directly, it may be learnt from circumstances, as when there was Enmity between the Parties, providing Arms, lying in wait, &c.”
Hawkins, Pleas of the Crown
. The page reference cannot be determined from the context.
See the materials quoted in JA's notes, notes
Justinian, Digest, bk. 42, tit. 2, De Confessis. A series of eight laws, most of which deal with the confession of civil obligations, stating the general proposition that confession of a debt is the equivalent of a judgment for that amount. Quincy may have been drawing an analogy to the provisions that this rule does not apply where the amount of the debt or the nature of property in question is uncertain. Id., L. 6, L. 8.
Justinian, Codex, bk. 7, tit. 59, De Confessis, §1: “Confessis in jure pro judicatis haberi placet. Quare sine causa desideras recedi a confessione tua, cum et solvere cogeris.” See 14 Scott, Civil Law
202: “It has been decided that confessions made in court have the effect of judgments, therefore you have no right to revoke your confession, as you will be compelled to make payment.” A better translation of the first clause might be: “confessions in law have the effect of judgments.”
1 Domat, “Presumptions are consequences drawn from a fact that is known, to serve for the discovery of the truth of a fact that is uncertain, and which one seeks to prove. . . . Thus in a Criminal Affair, if a Man has been killed, and it is not known by whom, and if it be discovered that he had a little while before a quarrel with another person, who had threatened to kill him, one draws from this known fact of the quarrel and threatning, a Presumption that he who had thus threatned him, may have been the Author of the Murder.”Civil Law
430:
2 Domat, “There is likewise a fourth Kind of Proofs which are called Presumptions, that is to say, Consequences which are drawn from certain Facts that are known and proved, whereby to guess at or infer the Certainty of the Fact in dispute, and of which the said known Facts are Marks and Signs; and these sorts of Proofs are called Presumptions, because they do not demonstrate the Fact it self which is to be proved, but prove the Truth of other Fact, the knowledge whereof discovers, points out, and gives room to conjecture and presume the Fact in question, because of the natural and necessary Connection between the Facts that are known, and those which we want to know the Truth of.”Civil Law
668:
That is, 2 Domat, Civil Law
670. The precise passage intended cannot be determined from context.
2 Domat, Civil Law
618, a passage stating that the three bases for differentiating between crimes are (1) the degree of heinousness; (2) the motive, whether premeditation, passion, or imprudence; and (3) the circumstances in which the crime is committed.
Probably a reference to Francis Bacon, Works, 1:251 (London, 1750), a section of the eighth book of his De Augmentis Scientiarum, entitled “De exemplis et usu eorum,” which deals with “examples, from which justice is to be derived when the law is deficient,” that is, examples of human experience not common enough to have been reduced to custom or law. See 5 Bacon, Works 92–94 (London, transl. and ed. Spedding, Ellis, Heath, 1877).
2 Hale, Pleas of the Crown
289. Presumably the reference is to this passage: “In some cases presumptive evidences go far to prove a person guilty, tho there be no express proof of the fact to be committed by him, but then it must be very warily pressed, for it is better five guilty persons should escape unpunished, than one innocent person should die.” Hale then gives the example of a man executed for theft of a horse, only to have the true thief later confess that he had given the innocent victim the horse to walk just before his apprehension. There follows on p. 290 the passage quoted by JA, note
Presumably John Ayliffe, Parergon Juris Canonici Anglicani 447, 448 (London, 2d edn., 1734), a long passage on the sufficiency of proof, containing such statements as, “In the Business of Proof, a Judge ought first to have a great Regard to the Probability thereof” (p. 447), and, “As in all Criminal Causes Evidence or Notoriety of Fact is full Proof, so likewise in such Causes all manner of Proofs ought to be clearer than the Light of the Sun at Noon-day.” (p. 448). That this work was available in Boston appears from the Harvard Law School's copy, which bears the signatures of Jeremy Gridley, Samuel Sewall, and Christopher Gore. For another use of Ayliffe by JA, see p. 104 above.
Presumably either Wood, New Institute of the Civil Law
, or Wood, Institute of the Laws of England
.
Information.2
By what Rule is Prisoner to be tryed? Answer by the civil Law.
Statute 28. H. 8, c. 15. 11. & 12. W. 3, c. 7. 4. G, c. 11, §. 7. then
Foster 288. Barrington 54, bottom Note—notwithstanding St. Tr. V. 8, page 213.
It has been customary to look into both Laws, here, as it seems they do in London, at the Admiralty sessions.3
But the Principal Rule of Law upon which our defence is grounded is common to both Laws, that the Confession shall be taken alltogether.
Woods Inst. 676. Vin. Evid. page 95 A. b. 23. 3. 5. Mod. 165. 2. Hawk. 429.
Examen Juris Canonici. 335. Maranta Sp. Aur. 313. 314 especially.
351
2. Corp. Juris canonici 118 of the Institute de probationibus. This is no more than an extrajudicial Confession. Phillip & Mary.4
We must therefore throw all his Confessions and Examinations into the fire, and consider the Case without them.
But then by what Rules? Wood Inst. 310. Cod. Lib. 4. Tit. 19. §. 25. Maranta page 49. pars 4, dist. 1 77 Gail 503. 2. H.H.P.C. 290. 4. Blackst. 352. Dig. Lib. 29. Tit. 5. §. 24. “Nisi constet aliquem esse occisum, non habui
Then consider Mr. Fitches Observations upon the Evidence—his Improbabilities, Incredibilities, Absurdities, Inconsistencies &c.
In JA's hand, following, after an interval of space, his notes of authorities, printed as Doc. I. See note 26 above. Only authorities not cited by JA in Doc. I have been annotated in Doc. III. The notes have been dated from a contemporary newspaper account. See text at notes 18, 19, above.
That is, the information or libel containing the articles of the charge against Nickerson. No copy of this document has been found.
That is, into both the common law, and the civil law, which was traditionally used in Admiralty. Compare No. 56. In the English practice, the jury and other features of the common law were made applicable by statute, but certain civil-law rules, such as the lack of the death penalty for manslaughter, applied. See No. 56, Doc. VI; p. 275, notes 2, 3, above. The argument seems to be JA's means of getting around the decision of the Boston Special Court of Admiralty in Quelch's Case (1704), that common-law rules controlled the admissibility of evidence. See note 51 above. For his difficulties with the same problem in the Vice Admiralty Court, see No. 46.
Presumably a reference to the statutes 1 & 2 Phil. & Mary, c. 13 (1554), and 2 & 3 Phil. & Mary, c. 10 (1555), which provided that justices of the peace should examine persons accused of manslaughter or felony, either when admitting them to bail or upon commitment, and should certify the examination to the next court of general gaol delivery. According to 2 Hawkins, Pleas of the Crown
429 (cited by JA to another point, note